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Reining In the Arbitrary Executive


See Greenwald and Daphne Evitar on a potentially important decision from a Ninth Circuit panel repudiating at least one element of the expansive “state secrets” privilege claimed by the Bush and Obama administrations. In this case, the Bush admininstration put forward the position that this incredibly broad privelege could apply to a civil suit involving a third party, and (disgracefully) the Obama administration continued with this assertion. While the ruling does not deny that the privelege exists in certain narrow circumstances, it rejected the broader claims put forward by Bush and Obama:

Today, in a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the “state secrets” privilege — except in extremely rare circumstances not applicable here — does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the “subject matter” of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts — exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security.

We’ll have to see if this is heard en banc or by the Surpeme Court, but hopefully the suit against Jeppesen Dataplan for abetting an extraordinary rendition that led to torture will be allowed to proceed.

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